EXHIBIT 2
STOCKHOLDER AGREEMENT dated as of
September 12, 1997, among INTERNATIONAL
BUSINESS MACHINES CORPORATION, a New York
corporation ("Parent"), and the individuals
and other parties listed on Schedule A
attached hereto (each, a "Stockholder" and,
collectively, the "Stockholders").
WHEREAS, Parent, New Orchard Corp., a Delaware
corporation and a wholly owned subsidiary of Parent ("Sub"),
and Unison Software, Inc., a Delaware corporation (the
"Company"), propose to enter into an Agreement and Plan of
Merger dated as of the date hereof (as the same may be
amended or supplemented, the "Merger Agreement"; capitalized
terms used but not defined herein shall have the meanings
set forth in the Merger Agreement) providing for the merger
of the Company with and into Sub (the "Merger"), upon the
terms and subject to the conditions set forth in the Merger
Agreement; and
WHEREAS, as of the date hereof each Stockholder
owns the number of shares of common stock, par value $.001
per share, of the Company ("Company Common Stock") set forth
opposite his or its name on Schedule A attached hereto (such
shares of Company Common Stock, together with any other
shares of capital stock of the Company acquired by such
Stockholder after the date hereof and during the term of
this Agreement (including through the exercise of any stock
options, warrants or similar instruments), being
collectively referred to herein as the "Subject Shares");
and
WHEREAS, as a condition and inducement to its
willingness to enter into the Merger Agreement, Parent has
requested that each Stockholder enter into this Agreement;
NOW, THEREFORE, to induce Parent to enter into,
and in consideration of its entering into, the Merger
Agreement, and in consideration of the representations,
warranties, covenants and agreements contained in this
Agreement, the parties hereto agree as follows:
1. Representations and Warranties of each
Stockholder. Each Stockholder hereby, severally and not
jointly, represents and warrants to Parent as of the date
hereof in respect of himself or itself as follows:
(a) Authority. The Stockholder has all requisite
power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby.
This Agreement has been duly authorized, executed and
delivered by the Stockholder and constitutes a valid and
binding obligation of the Stockholder enforceable against
the Stockholder in accordance with its terms. The execution
and delivery of this Agreement do not, and the consummation
of the transactions contemplated by this Agreement and
compliance with the provisions of this Agreement will not,
(i) conflict with, or result in any violation of, or default
(with or without notice or lapse of time, or both) under,
any provision of any trust agreement, loan or credit
agreement, bond, debenture, note, mortgage, indenture, lease
or other contract, commitment, agreement, arrangement,
obligation, undertaking, understanding, instrument, permit,
concession, franchise, license, statute, law, ordinance,
rule, regulation, judgment, order, notice or decree,
applicable to the Stockholder or to the Stockholder's
property or assets, (ii) require any registration,
declaration or filing with, or consent, approval, order or
authorization of, any Federal, state or local, domestic or
foreign, government or any court, administrative agency or
commission or other governmental or regulatory authority or
agency, domestic or foreign or (iii) violate any judgment,
order, writ, injunction, decree, statute, law, ordinance,
rule or regulation applicable to the Stockholder or any of
the Stockholder's properties or assets, including the
Stockholder's Subject Shares. If the Stockholder is a
natural person and is married, and the Stockholder's Subject
Shares constitute community property or otherwise need
special or other approval for this Agreement to be legal,
valid and binding, this Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and
binding agreement of, the Stockholder's spouse or the person
giving such approval, enforceable against such spouse or
person in accordance with its terms. No trust of which such
Stockholder is a trustee requires the consent of any
beneficiary to the execution and delivery of this Agreement
or to the consummation of the transactions contemplated
hereby. The Stockholder, together with the other
Stockholders, constitutes all the trustees of any trust of
which such Stockholder is a trustee, and such trustees have
all requisite power and authority to execute and deliver
this Agreement and to consummate the transactions
contemplated hereby on behalf of such trust.
(b) The Subject Shares. The Stockholder is the
record and beneficial owner of, or is trustee of a trust
that is the record holder of, and whose beneficiaries are
the beneficial owners of, and has good and marketable title
to, the Subject Shares set forth opposite his or its name on
Schedule A attached hereto. As of the date hereof, the
Stockholder does not own, of record or beneficially, any
shares of capital stock of the Company other than the
Subject Shares set forth opposite his or its name on
Schedule A attached hereto.
(c) Encumbrances. The Stockholder's Subject
Shares and the certificates representing such Shares are
now, and at all times during the term hereof will be, held
by such Stockholder, or by a nominee or custodian for the
benefit of such Stockholder, free and clear of all pledges,
claims, liens, security interests, proxies, voting trusts or
agreements, arrangements or understandings or any other
encumbrances whatsoever, except for any such encumbrances or
proxies arising hereunder or under the existing terms of a
trust of which such Stockholder is the trustee.
2. Representations and Warranties of Parent.
Parent hereby represents and warrants to each Stockholder
that Parent has all requisite corporate power and authority
to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been
duly authorized, executed and delivered by Parent and
constitutes a valid and binding obligation of Parent
enforceable against Parent in accordance with its terms.
The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated by this
Agreement and compliance with the provisions of this
Agreement will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of
time or both) under, any provision of the Certificate of
Incorporation or By-laws of Parent, any trust agreement,
loan or credit agreement, bond, debenture, note, mortgage,
indenture, lease or other contract, commitment, agreement,
arrangement, obligation, understanding, instrument, permit,
concession, franchise, license, statute, law, ordinance,
rule, regulation, judgment, order, notice or decree
applicable to Parent or to Parent's property or assets.
3. Covenants of each Stockholder. Until the
termination of this Agreement in accordance with Section 8,
each Stockholder, severally and not jointly, agrees as
follows:
(a) Without in any way limiting the Stockholder's
right to vote the Subject Shares in its sole discretion on
any other matters that may be submitted to a stockholder
vote, consent or other approval (including by written
consent), at any meeting of stockholders of the Company
called to vote upon the Merger and the Merger Agreement or
at any adjournment thereof or in any other circumstances
upon which a vote, consent or other approval (including by
written consent) with respect to the Merger and the Merger
Agreement is sought, the Stockholder shall, including by
initiating a written consent solicitation if requested by
Parent, vote (or cause to be voted) such Stockholder's
Subject Shares (and each class thereof) in favor of the
Merger, the adoption by the Company of the Merger Agreement
and the approval of the other transactions contemplated by
the Merger Agreement.
(b) At any meeting of stockholders of the Company
or at any adjournment thereof or in any other circumstances
upon which the Stockholder's vote, consent or other approval
is sought, such Stockholder shall vote (or cause to be
voted) such Stockholder's Subject Shares against (i) any
merger agreement or merger (other than the Merger Agreement
and the Merger), consolidation, combination, sale of
substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by the Company
or any other Company Acquisition (collectively, "Alternative
Transactions") or (ii) any amendment of the Company's
Certificate of Incorporation or Bylaws or other proposal or
transaction involving the Company or any of its
subsidiaries, which amendment or other proposal or
transaction would in any manner impede, frustrate, prevent
or nullify the Merger, the Merger Agreement or any of the
other transactions contemplated by the Merger Agreement
(collectively, "Frustrating Transactions").
(c) Such Stockholder shall not (i) transfer (which
term shall include, without limitation, for the purposes of
this Agreement, any sale, gift, pledge or other
disposition), or consent to any transfer of, any or all of
such Stockholder's Subject Shares or any interest therein,
except pursuant to the Merger, (ii) enter into any contract,
option or other agreement, arrangement or understanding with
respect to any or all of such Subject Shares or any interest
therein, (iii) grant any proxy, power-of-attorney or other
authorization in or with respect to such Subject Shares,
except for this Agreement or (iv) deposit such Shares into a
voting trust or enter into a voting agreement or arrangement
with respect to such Shares; provided, however, that any
such Stockholder may transfer (as defined above) any of the
Subject Shares to any other Stockholder who is on the date
hereof, or to any family member of a Stockholder or
beneficiary of a trust for which Stockholder is trustee or
charitable institution which prior to the Stockholders
Meeting and prior to such transfer becomes, a party to this
Agreement bound by all the obligations of a "Stockholder"
hereunder.
(d) Such Stockholder hereby waives any rights of
appraisal, or rights to dissent from the Merger, that such 5
Stockholder may have and hereby irrevocably agrees to make a
Stock Election with respect to at least 85% of such
Stockholder's Subject Shares.
(e) During the term of this Agreement, the
Stockholder shall not, nor shall it authorize or permit any
officer, director, partner, employee or agent or any
investment banker, attorney or other advisor or
representative of the Stockholder to, directly or
indirectly, (i) solicit, initiate or encourage the
submission of any Takeover Proposal or (ii) participate in
any discussions or negotiations regarding, or furnish to any
person any information with respect to, or take any other
action to facilitate any inquiries or the making of any
proposal that constitutes or may reasonably be expected to
lead to, any Takeover Proposal. The foregoing sentence
shall not prohibit the Stockholder from taking any action
that would be permitted under Section 4.02 of the Merger
Agreement and in no event shall the Stockholder be liable
for any action taken by the Company or the Stockholder in
compliance with, or that would be permitted under,
Section 4.02 of the Merger Agreement; provided, however that
this sentence shall not limit the obligations of the
Stockholder under Sections 3(a), 3(b) and 3(j) and 4 hereof.
(f) Until after the Merger is consummated or the
Merger Agreement is terminated, the Stockholder shall use
all reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and
cooperate with the other parties in doing, all things
necessary, proper or advisable to consummate and make
effective, in the most expeditions manner practicable, the
Merger and the other transactions contemplated by the Merger
Agreement. The foregoing sentence shall not prohibit the
Stockholder from taking any action that would be permitted
under Section 4.02 of the Merger Agreement and in no event
shall the Stockholder be liable for any action taken by the
Company or the Stockholder in compliance with, or that would
be permitted under, Section 4.02 of the Merger Agreement;
provided, however that this sentence shall not limit the
obligations of the Stockholder under Sections 3(a), 3(b) and
3(j) and 4 hereof.
(g) If, at the time the Merger Agreement is
submitted for approval to the stockholders of the Company, a
Stockholder is an "affiliate" of the Company for purposes of
Rule 145 under the Securities Act, such Stockholder shall
deliver to Parent on or prior to the Closing Date a written
agreement substantially in the form attached as Exhibit A to
the Merger Agreement.
(h) The Stockholder, and any beneficiary of a
revocable trust for which such Stockholder serves as
trustee, shall not take any action to revoke, terminate or
amend such trust or take any other action which would
restrict, limit or frustrate in any way the transactions
contemplated by this Agreement, including withdrawing any
Subject Shares from such trust or replacing any trustees of
such trust. The Stockholder, on behalf of each such
beneficiary, hereby acknowledges and agrees to be bound by
the terms of this Agreement applicable to it.
(i) Each Stockholder shall cause this Agreement
to be filed with the Secretary of the Company.
(j) (i) In the event that the Merger Agreement
shall have been terminated under circumstances where Parent
is or may become entitled to receive the Termination Fee,
each Stockholder shall pay to Parent on demand an amount
equal to all profit (determined in accordance with Section
3(j)(ii)) of such Stockholder from the consummation of
(A) any Company Acquisition consummated within 12 months
following the termination of the Merger Agreement pursuant
to Section 7.01(b)(iv) thereof or (B) any Company
Acquisition that results in the Company being obligated to
pay the Termination Fee in accordance with the Merger
Agreement.
(ii) For purposes of this Section 3(j), the profit
of any Stockholder from any Company Acquisition shall equal
(A) the aggregate consideration received by such Stockholder
pursuant to such Company Acquisition, valuing any non-cash
consideration (including any residual interest in the
Company) at its fair market value on the date of such
consummation plus (B) the fair market value, on the date of
disposition, of all Subject Shares of such Stockholder
disposed of after the termination of the Merger Agreement
and prior to the date of such consummation less (C) the fair
market value of the aggregate consideration that would have
been issuable or payable to such Stockholder if such
Stockholder had received the Merger Consideration set forth
in the Merger Agreement in effect on the date hereof (the
"Original Merger Consideration"), valued as of the close of
business on the last full trading day prior to the first
public announcement by the Company of its intention to
terminate the Merger Agreement as if the Merger had been
consummated on the date of such public announcement. In
addition, it is agreed that for purposes of this
Section 3(j), the profit of any Stockholder from any Company
Acquisition shall be net of any taxes paid or payable by
Stockholder in respect of or otherwise attributable to such
profit (after taking into account the present value of any
tax benefits in respect of or otherwise attributable to any
payment of such profit pursuant to Section 3(j)(i)); it
being understood that any such Stockholder shall deliver to
Parent a written opinion of a nationally recognized
accounting firm as to the amount of any such net tax
adjustments at the time of the payment of any profits
pursuant to Section 3(j)(i).
(iii) For purposes of this Section 3(j), the fair
market value of any non-cash consideration consisting of:
(A) securities listed on a national securities
exchange or traded on the Nasdaq Stock Market
shall be equal to the average closing price
per share of such security as reported on
such exchange or Nasdaq Stock Market for the
five trading days before the date of
determination; and
(B) consideration that is other than cash or
securities of the form specified in clause
(A) of this Section 3(j)(iii) shall be
determined by a nationally recognized
independent investment banking firm mutually
agreed upon by Parent and the Stockholders
within 10 business days of the event
requiring selection of such banking firm;
provided, however, that if Parent and the
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Stockholders are unable to agree within two
business days after the date of such event as
to the investment banking firm, then Parent
and the Stockholders shall each select one
firm, and those firms shall select a third
investment banking firm, which third firm
shall make such determination; provided
further, that the fees and expenses of such
investment banking firm shall be borne
equally by Parent, on the one hand, and the
Stockholders, on the other hand. The
determination of the investment banking firm
shall be binding upon the parties.
(iv) Any payment of profit under this Section 3(j)
shall be paid in the same form as the consideration received
from the Company Acquisition or disposition (and, if the
consideration received from the Company Acquisition or
disposition was received in more than one form, in the same
proportion as the forms of consideration received) and
(x) to the extent paid in cash, shall be paid by wire
transfer of same day funds to an account designated by
Parent and (y) to the extent paid through a transfer of
securities, shall be paid through delivery of such
securities, suitably endorsed for transfer.
4. Grant of Irrevocable Proxy; Appointment of
Proxy. (a) Without in any way limiting the Stockholder's
right to vote the Subject Shares in its sole discretion on
any other matters that may be submitted to a stockholder
vote, consent or other approval (including by written
consent), each Stockholder hereby irrevocably grants to, and
appoints, Parent and Xxx Xxxxxx and Xxxxxx Xxxxxxx, in their
respective capacities as designees of Parent, and any
individual who shall hereafter succeed to any such office of
Parent, and each of them individually, such Stockholder's
proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such
Stockholder, to vote such Stockholder's Subject Shares, or
grant a consent or approval in respect of such Subject
Shares, (i) in favor of the Merger, the adoption by the
Company of the Merger Agreement and the approval of the
other transactions contemplated by the Merger Agreement, and
(ii) against any Alternative Transaction or Frustrating
Transaction. The proxy set forth in this Section 4 shall
terminate upon the termination of this Agreement.
(b) Such Stockholder represents that any proxies
heretofore given in respect of such Stockholder's Subject
Shares are not irrevocable, and that all such proxies are
hereby revoked.
(c) Such Stockholder hereby affirms that the
irrevocable proxy set forth in this Section 4 is given in
connection with the execution of the Merger Agreement, and
that such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this
Agreement. Such Stockholder hereby further affirms that the
irrevocable proxy is coupled with an interest and may under
no circumstances be revoked. Such Stockholder hereby
ratifies and confirms all that such irrevocable proxy may
lawfully do or cause to be done by virtue hereof. Such
irrevocable proxy is executed and intended to be irrevocable
in accordance with the provisions of Section 212(e) of the
DGCL.
5. Further Assurances. Each Stockholder will,
from time to time, execute and deliver, or cause to be
executed and delivered, such additional or further consents,
documents and other instruments and take such other actions
as Parent may reasonably request for the purposes of
effectively carrying out the transactions contemplated by
this Agreement.
6. Certain Events. (a) Each Stockholder agrees
that this Agreement and the obligations hereunder shall
attach to such Stockholder's Subject Shares and shall be
binding upon any person or entity to which legal or
beneficial ownership of such Subject Shares shall pass,
whether by operation of law or otherwise, including such
Stockholder's heirs, guardians, administrators or
successors. In the event of any stock split, stock
dividend, merger, reorganization, recapitalization or other
change in the capital structure of the Company affecting the
Company Common Stock, or the acquisition of additional
shares of Company Common Stock or other voting securities of
the Company by any Stockholder, the number of Subject Shares
listed in Schedule A beside the name of such Stockholder
shall be adjusted appropriately and this Agreement and the
obligations hereunder shall attach to any additional shares
of Company Common Stock or other voting securities of the
Company issued to or acquired by such Stockholder.
(b) Each Stockholder agrees that such Stockholder
will tender to the Company, within 10 business days after
the date hereof (or, in the event Subject Shares are
acquired subsequent to the date hereof within 10 business
days after the date of such acquisition), any and all
certificates representing such Stockholder's Subject Shares
in order that the Company may inscribe upon such
certificates the legend in accordance with Section 5.12 of
the Merger Agreement.
7. Assignment. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be
assigned, in whole or in part, by operation of law or
otherwise, by any Stockholder, on the one hand, without the
prior written consent of Parent nor by Parent, on the other
hand, without the prior written consent of the Stockholders,
except that Parent may assign, in its sole discretion, any
or all of its rights, interests and obligations hereunder to
any direct or indirect wholly owned subsidiary of Parent.
Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns.
8. Termination. This Agreement shall terminate,
and the provisions hereof shall be of no further force or
effect, upon the earliest to occur of (v) March 15, 1999,
(w) the Effective Time, (x) the termination of the Merger
Agreement pursuant to Section 7.01(a), Section 7.01(b)(ii)
or Section 7.01(d), (y) the termination of the Merger
Agreement pursuant to Section 7.01(b)(i) or Section
7.01(b)(iii) unless in either case a Takeover Proposal shall
have been publicly announced or otherwise publicly disclosed
and not publicly withdrawn prior to such termination or
(z) one year after the date the Merger Agreement is
otherwise terminated in accordance with its terms.
Notwithstanding the foregoing, Section 3(j) and the last
sentence of Section 4(a) shall survive the termination of
this Agreement.
9. General Provisions.
(a) Amendments. This Agreement may not be
amended except by an instrument in writing signed by each of
the parties hereto.
(b) Notice. All notices, requests, claims,
demands and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or
sent by overnight courier (providing proof of delivery) to
Parent in accordance with Section 8.02 of the Merger
Agreement and to the Stockholders at their respective
addresses set forth on Schedule A attached hereto (or at
such other address for a party as shall be specified by like
notice).
(c) Interpretation. When a reference is made in
this Agreement to a Section or Schedule, such reference
shall be to a Section of or Schedule to this Agreement
unless otherwise indicated. The headings contained in this
Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this
Agreement. Wherever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed
to be followed by the words "without limitation".
(d) Counterparts. This Agreement may be executed
in one or more counterparts, all of which shall be
considered one and the same agreement, and shall become
effective when one or more of the counterparts have been
signed by each of the parties and delivered to the other
parties.
(e) Entire Agreement; No Third-Party
Beneficiaries. This Agreement (including the documents and
instruments referred to herein) (i) constitutes the entire
agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties
with respect to the subject matter hereof and (ii) is not
intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
(f) Governing Law. This Agreement shall be
governed by, and construed in accordance with, the laws of
the State of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflicts of
law thereof.
(g) Voidability. If prior to the execution
hereof, the Board of Directors of the Company shall not have
duly and validly authorized and approved by all necessary
corporate action, this Agreement, the Merger Agreement and
the transactions contemplated hereby and thereby, so that by
the execution and delivery hereof Parent or Sub would
become, or could reasonably be expected to become, an
"interested stockholder" with whom the Company would be
prevented for any period pursuant to Section 203 of the DGCL
from engaging in any "business combination" (as such terms
are defined in Section 203 of the DGCL), then this Agreement
shall be void and unenforceable until such time as such
authorization and approval shall have been duly and validly
obtained.
10. Enforcement. The parties agree that
irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall
be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the
terms and provisions of this Agreement in any court of the
United States located in the State of Delaware or in a
Delaware state court, this being in addition to any other
remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (i) consents to submit
itself to the personal jurisdiction of any court of the
United States located in the State of Delaware or any
Delaware state court in the event any dispute arises out of
this Agreement or any of the transactions contemplated by
this Agreement, (ii) agrees that it will not attempt to deny
or defeat such personal jurisdiction by motion or other
request for leave from any such court, (iii) agrees that
such party will not bring any action relating to this
Agreement or the transactions contemplated by this Agreement
in any court other than a court of the United States located
in the State of Delaware or a Delaware state court and
(iv) waives any right to trial by jury with respect to any
claim or proceeding related to or arising out of this
Agreement or any of the transactions contemplated hereby.
11. Public Announcements. Except as required by
law, no Stockholder shall issue any press release or other
public statement with respect to the transactions
contemplated by this Agreement or the Merger Agreement
without the prior written consent of Parent.
12. Severability. If any term or other provision
of this Agreement is invalid, illegal or incapable of being
enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such
determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as
possible to the fullest extent permitted by applicable law
in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
IN WITNESS WHEREOF, Parent has caused this
Agreement to be signed by its authorized signatories and
each Stockholder has signed this Agreement, all as of the
date first written above.
INTERNATIONAL BUSINESS MACHINES
CORPORATION,
By:----------------------------
Name:
Title:
Stockholders:
--------------------------
Xxx X. Xxx
--------------------------
Xxxxxxx X. Xxxxxxx
SCHEDULE A
Number of Shares
of Company
Name and Common Stock
Address of Owned or to be
Stockholder* Owned of Record
2,240,952
Xxx X. Xxx 1
Xxxxxxx X. Xxxxxxx 2 1,482,649
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* Unless an address is otherwise set forth below, the
address for such stockholder shall be the address of the
Company set forth in Section 8.02 of the Merger Agreement.
1 Includes 12,000 shares issuable under stock options
exercisable within 60 days of August 29, 1997.
2 Includes 18,000 shares issuable under stock options
exercisable within 60 days of August 29, 1997.
